09/12/2021, 14:37 Defective Rule 43 Application - Family law

MTC versus CMC - Case Number 5430/2020

MAGONA, Acting Judge

A.    INTRODUCTION

In a Rule 43 application, the Applicant (husband) sought:

maintenance pendente lite, in the sum of R55 670.00 per month;

The Respondent (wife) submitted that the application was without merit and should have been dismissed with costs.

The Respondent denied the veracity of the contents of the Applicant’s founding affidavit. The Applicant had chosen to not fully disclose
information and misrepresented facts. There was a scarcity of information regarding his financial circumstances and he made
misrepresentations and material non-disclosures that skewed the facts.

The Applicant's application was dismissed with costs.

B.    THE RULE 43

The Applicant, a businessman, launched the application, notwithstanding the fact that the Respondent was a pensioner, with multiple
severe and life- threatening medical conditions. The Respondent was declared permanently disabled in 2013 and was unemployed
and unable to work. The Respondents’ daughter (who also suffered from an auto immune disease) and grandchildren, were financially
dependent on the Respondent.

In the divorce proceedings, which the Applicant instituted against the Respondent, the Applicant did not seek maintenance from the
Respondent.

In the unreported decision of GB v DS in the Gauteng Local Division High Court (16/08/2018) under case number 16158/16, page 4
paragraph 9. 

Keightley, J stated as follows:

“… this claim [for interim maintenance] must be evaluated against the purpose of Rule 43. The purpose has been stated as follows:

“Primarily Rule 43 was envisaged to provide temporary assistance for women, who had given up their careers or potential career for
the sake of matrimony with or without maternity, until such time as at a trial and after hearing evidence maintenance claims … could
be properly determined. It was not created to give an interim meal-ticket to women who clearly at trial would not be able to establish a
right to maintenance. The grey area between the two extremes causes problems.”

and further that:

“… the Rule is designed to provide interim cover to the spouse who has been financially dependent on the other spouse, because of
their particular marital circumstances, and who thus has a genuine need for such support to continue until the matter is finally dealt
with on divorce. This being the case, a claim for interim maintenance would normally be accompanied by a claim for maintenance on
divorce. In the absence of such a claim, the implication is that the critical requirement of financial dependency on the other spouse,
which underpins the application for interim maintenance, is missing….”

“Mr B [the Applicant] does not explain why he failed to date to claim personal maintenance on divorce….. Mr B does not place facts
before the court to show that he was financially dependent on Mr S [the Respondent] during the course of the marriage, and that he
will have a claim to maintenance on divorce. Thus, in my view, Mr B has failed to establish that his claim for interim maintenance

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meets the basic requirements of Rule 43 in this important respect. His claim for maintenance falls to be dismissed on this basis alone.”

As stated, the Applicant did not claim maintenance in the divorce action. In truth and in fact, the Applicant was not financially
dependent on the Respondent during the course of the marriage. This, it was submitted, was a concession by the Applicant that he
does not need the Respondent’s financial support and that the Respondent did not owe him any duty of support.

Accordingly, it was submitted, that the Applicant’s claim fell to be dismissed on that basis alone. 

C.    MATERIAL NON-DISCLOSURES

As will appear more fully from the legal authorities set out below, material non-disclosures in a Rule 43 application are of the utmost
importance.

It was submitted that the Applicant was guilty of the following material non-disclosures, namely that:-

he failed to disclose to the Court that the Respondent was a very sick women and that she had been permanently disabled
since 2013;
the Applicant failed to disclose to the Court that the Respondent had not been employed for many years and was incapable of
being employed;
the Applicant failed to disclose that he conducted a business until at least January 2020 and perhaps longer but misled the
Court by stating that he was unable to secure employment since July 2019.
he failed to disclose to the Court that he had a considerable asset base; and
he did not explain how he managed to maintain himself since being unemployed in July 2019.

D.    UNDISPUTED FACTS

The following facts, were common cause between the parties, namely that:

the parties were married to each other on 10 August 2013, out community of property, with the inclusion of the accrual system;
there were no children born of the marriage;
the parties have not lived together since 2016; and
the Applicant instituted divorce proceedings against the Respondent in July 2017 and made no claim to maintenance for
himself.

E.    THE RESPONDENT’S MEDICAL CONDITIONS 

The Respondent suffered from multiple health conditions, including a heart condition, osteoporosis, Addison’s Disease, and auto
immune diseases. In addition:

in 2011, the Respondent was fitted with a permanent pacemaker as a result of heart conditions from which she suffered. As a
result of complications and excruciating pain, the Respondent had to undergo several further surgeries and the pacemaker
was subsequently surgically removed.
in July 2013, the Respondent had a labrum tear on her left hip which required surgery in order to repair.
in December 2013, the Respondent was declared permanently disabled and consequently, the Respondent was unable to
work and has since been unemployed.
in February 2015, the Respondent underwent decompression surgery whilst she was living with the Applicant in Kuwait. As a
result of this major back surgery, the Respondent was not able to fly for 3 months.

Notwithstanding the fact the Respondent was declared permanently disabled merely 4 months after the parties married each other,
and the abovementioned medical procedures were performed either prior to, or during, the course of the marriage, the Applicant
persisted in stating that:

“although I do not know where she [the Respondent] is currently employed, I have no doubt she is generating a substantial income.” 

This latter statement was to the knowledge of the Applicant, not true, as he was well aware that Respondent could not be employed. In
fact, the Applicant maintained the Respondent subsequent to their separation, for a short period in 2016, due to the Respondent’s ill-
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health.

F.    LAW ON FALSE DISCLOSURE / NON-DICLOSURE BY THE APPLICANT

In Du Preez v Du Preez 2009 (6) SA 28 (T) at 32C-H, it was held that:

“…there is a tendency for parties in rule 43 applications, acting expeditiously or strategically, to misstate the true nature of their
financial affairs. It is not unusual for parties to exaggerate their expenses and to understate their income…To my mind the practice is
distasteful, unacceptable, and should be censured. Such conduct, whatever the motivation behind it, is dishonourable and should find
no place in judicial proceedings…Should such conduct occur in rule 43 proceedings at the instance of the applicant, then relief should
be denied.”

and further that:

“A misstatement of one aspect of relevant information invariably will color other aspects with the possible (or likely) result that fairness
will not be done. Consequently, I would assume there is a duty on applicants in Rule 43 applications seeking equitable redress to act
with the utmost good faith… and to disclose fully and all material information regarding their financial affairs. Any false disclosure or
material non-disclosure would mean that he or she is not before the court with “clean hands” and on that ground alone the court will be
justified in refusing relief.”

Respondent’s counsel submitted that the Applicant was, guilty of conduct referred to in the Du Preez case supra, as will appear below.

The Applicant claimed to be unemployed. He further claimed that he had been unable to secure permanent employment since his
contract on the Finland/Russian border, expired in July 2019. However, the Applicant’s personal LinkedIn profile painted a different
picture. Firstly, it shows that the Applicant’s contract terminated in January 2020, some 6 months after the date alleged by him.
Second, it demonstrated that the Applicant was not actually unemployed but, in fact, that he set up a retail consultancy business in
“December 2019 – present”. On the basis of the false disclosure of this material fact, it was submitted, the application had to be
dismissed, on this basis as well.

In TS v TS 2018 (3) 572 (GJ) at 15 Spilg, J emphasized the importance of financial disclosure during Rule 43 proceedings and stated
that:

“Without the requirements of a proper disclosure, and possibly the utilization of oral evidence in appropriate cases, rule 43
proceedings favour the unscrupulous party or the one who takes advantage of a practice that does not insist on up-front disclosure of
the true state of financial affairs.”

The Applicant claimed to have exhausted all of his savings and to have no funds to cover his living expenses. Furthermore, the
Applicant claimed to have no income, savings or realizable assets. Conspicuous by its absence, was that the Applicant's personal
bank statements which, it was submitted, pointed to the absence of full and frank disclosure of vital financial information on the part of
the Applicant, which was inherent in proceedings relating to maintenance.

Gorven AJA, as cited in ST v CT 2018 (5) SA 479 SCA at 492 – 493, held that:

“39. The attitude of many divorce parties, particularly in relation to money claims where they control the money, can be characterised
as “catch me if you can”. These parties set themselves up as immovable objects in the hope that they will wear down the other party.
They use every means to do so. They fail to discover properly, fail to provide any particulars of assets within their peculiar knowledge
and generally delay and obfuscate in the hope that they will not be “caught” and have to disgorge what is in law due to the other party.

[40] The conduct of the trial … appears to have been run by the defendant on a ‘catch me if you can ’ basis…. He delayed providing
what were obviously relevant documents until the last minute and then did not discover them. He declined to provide any documents
concerning the financial position of Full House Taverns. He did not provide documents which could be used to trace assets derived
from the excluded assets. He did not prove that documents relating to the Trust were furnished timeously or at all pursuant to a
subpoena duces tecum after initially claiming that he could not furnish these without the consent of his co- trustees. He inexplicably did
not testify and then took a technical point concerning documentary proof. [41] This approach of the defendant deserves censure. In my
view, it may have warranted a punitive costs order at the trial.”

The Applicant, furthermore, failed to even list his assets and liabilities and the principles set out in the above case were applicable to
this application. This demonstrated the lack of bona fides on part of the Applicant. Suspiciously and rather significantly, when the
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Applicant was called upon to make discovery in terms of Rule 35(1), the only documentation discovered by the Applicant was
correspondence between attorneys. If regard is had to the conduct of the Applicant, the only reasonable inference that could be
drawn, it was submitted, was that the Applicant’s financial position, as portrayed by him in this application, was not a true reflection of
his actual financial position and that he did not in fact, require the financial support of the Respondent. Accordingly, it was submitted
that the Applicant’s application was without merit and was not brought in good faith.

G.    APPLICANT’S MONTHLY EXPENSES

The Applicant claimed his monthly expenses amount to  R55 670.00. Significantly, not a single item or expense was supported by any
supporting document. Furthermore, the Applicant claimed to spend R2 000.00 a month on clothing which, it was submitted, was
extravagant for a person who claimed to be unemployed and had “no income, no savings and no realisable assets.” Brazenly, the
Applicant further claimed an amount of R17 300.00 in respect of child maintenance for his child born from his previous marriage, who
resides in the United States with his ex-wife. It was submitted that there was no legal duty on the Respondent to support the
Applicant’s child born of his previous marriage. 

H.    FINANCIAL POSITION OF THE RESPONDENT

The last income the Respondent received was in 2014 when she received a retrenchment package from Old Mutual. The
Respondent’s daughter was unemployed due to an auto immune disease and the COVID-19 pandemic. The Respondent was now
“saddled” with the financial burden of having to meet her daughter’s financial obligations, in addition to her own, until such time as her
daughter was able to return to work without potentially being exposed to the COVID-19 virus.

The Respondent’s monthly income consisted of approximately R6 000.00 rental income and R25 000.00 which she drew from her
investment account. The Respondent relied on this income to meet her own household and medical expenses and to support her
daughter and her grandchildren. The Respondent made use of her credit card to fund what she could.

The Respondent’s monthly expenses amounted to R48 759.80. Having regard to the Respondent’s income and financial obligations, it
was clear that she was hardly able to meet her own expenses on a monthly basis. 

I.     APPLICANT’S FAILURE TO DEAL WITH ALLEGATIONS N REPLY 

In the Respondent’s opposing affidavit, she averred that:

less than 3 years ago, the Applicant, and his girlfriend, travelled across the world, visiting the USA several times, South Africa
at least twice and various European countries.
the Applicant and his girlfriend enjoyed luxurious holidays spent at the Bandos Resort in the Maldives and stayed at opulent
hotels such as the St Regis, where rooms cost in excess of R5 000.00 per person, per night;
the Applicant, during the course of their marriage, had investments in Zurich, amounting to, at one stage, R800 000.00, a
Preservation Plan, a Indemnity worth approximately R988 113.00 and various other investments. Over and above this, the
Respondent averred that the Applicant owned a Toyota Land Cruiser, Mercedes Benz, a Sea Ray boat and a Yamaha jet ski;
the Applicant, in the past, earned close to R300 000.00 per month.

It was clear that the Respondent raised, in her opposing affidavit, material allegations to which the Applicant ought, but failed to
answer in reply. These allegations “cried out” for a reply by the Applicant and the failure to answer them lead to the inescapable
inference that they were true.

The approach of our Courts, both in ordinary motion proceedings and in Rule 43 proceedings, is that material allegations ought to be
answered with the leave of the Court. See Sigaba v Minister of Defence and Police and Another; 1980 (3) SA 535 (T) at 550F.
Pretoria Portland Cement Co Ltd v Competition Commission; 2003 (2) SA 385 (SCA) at 409G. Tantoush v Refugee Appeal
Board and Others; 2008 (1) SA 232 (TPD) at 250B-E, Thint (Pty) Ltd v National Director of Public Prosecutions and Others;
Zuma and Another v National Director of Public Prosecutions and Others. 2009(1) SA 1 (CC) at 124I-125B. This principle has
been extended to Rule 43 applications. See SP v HP 2009(5) SA 223 (O).

J.    CONTRIBUTION TO COSTS

In regard to the question of a contribution towards costs, it was stated in Smalberger v Smalberger: 1948 (2) SA 309 (O):

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“The exact basis upon which a wife married out of community of property can demand a contribution towards the costs of the
matrimonial suit is not clear… but there is nevertheless ample authority for the proposition that she can do so if she is destitute or
where she has no separate estate of her own, or where she has not the necessary funds, provided that she further satisfies the court
that she has a prima facie case if the plaintiff or a bona fide defense if the defendant and that the husband is in a position to provide
such a contribution.”

It was submitted that the Applicant failed to make out a prima facie case for a contribution to costs and he was not entitled to the relief
sought by him. To make out a prima facie case, the Applicant ought to have shown, firstly, a duty of support, second, a need to be
supported and third, adequate resources on the part of the Respondent to support him. It was submitted that the Applicant failed on all
three counts.

APPEARANCES
 
For the Applicant:
 
Mr Simon Dippenaar - Attorney
Simon Dippenaar & Ass Inc. Adv Larina Venter
 
For the Respondent:
 
Mr Bertus Preller - Attorney - Maurice Phillips Wisenberg
Adv Brian Pincus SC, Adv Stacey Sundelson

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